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ASM INTERNATIONAL N.V.
and
ADVANCED SEMICONDUCTOR MATERIALS (NETHERLANDS ANTILLES) N.V.
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CREDIT AGREEMENT
Dated as of July 6, 2000
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CANADIAN IMPERIAL BANK OF COMMERCE
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TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which it is
attached but is inserted for convenience of reference only.
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Section 1. Definitions and Accounting Matters................................................................... 1
1.01 Certain Defined Terms............................................................................. 1
1.02 Accounting Terms and Determinations............................................................... 6
Section 2.0 Commitments, Loans, Notes and Prepayments........................................................... 6
2.01 Loans............................................................................................. 6
2.02 Borrowings........................................................................................ 6
2.03 Commitment Reductions and Termination............................................................. 6
2.04 Lending Offices................................................................................... 6
2.05 Notes............................................................................................. 7
2.06 Optional Prepayments.............................................................................. 7
Section 3. Payments of Principal and Interest................................................................... 7
3.01 Repayment of Loans................................................................................ 7
3.02 Interest.......................................................................................... 7
Section 4. Payments; Pro Rata Treatment; Computations; Etc...................................................... 7
4.01 Payments.......................................................................................... 7
4.02 Computations...................................................................................... 8
4.03 Minimum Amounts................................................................................... 8
4.04 Certain Notices................................................................................... 8
4.05 Set-off............................................................................................ 8
Section 5. Yield Protection, Etc................................................................................ 8
5.01 Additional Costs.................................................................................. 8
5.02 Alternative Interest Rate......................................................................... 10
5.03 Illegality........................................................................................ 10
5.04 Taxes............................................................................................. 11
5.05 Compensation...................................................................................... 11
Section 6. Guarantee............................................................................................ 12
6.01 The Guarantee..................................................................................... 12
6.02 Obligations Unconditional......................................................................... 12
6.03 Reinstatement..................................................................................... 13
6.04 Subrogation....................................................................................... 13
6.05 Remedies.......................................................................................... 13
6.06 Continuing Guarantee.............................................................................. 13
Section 7. Conditions Precedent................................................................................. 13
7.01 Initial Loan...................................................................................... 13
7.02 Initial and Subsequent Loans...................................................................... 14
Section 8. Representations and Warranties....................................................................... 15
8.01 Corporate Existence............................................................................... 15
8.02 Financial Condition............................................................................... 15
8.03 Litigation........................................................................................ 15
8.04 No Breach......................................................................................... 15
8.05 Action............................................................................................ 16
8.06 Approvals......................................................................................... 16
8.07 Margin Regulation.................................................................................. 16
8.08 Legal Form........................................................................................ 16
8.09 Ranking........................................................................................... 16
8.10 Taxes............................................................................................. 16
(i)
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8.11 Commercial Activity; Absence of Immunity.......................................................... 16
8.12 Material Agreements and Liens..................................................................... 16
8.13 True and Complete Disclosure...................................................................... 17
Section 9. Covenants of the Obligors............................................................................ 17
9.01 Financial Statements Etc.......................................................................... 17
9.02 Litigation........................................................................................ 18
9.03 Existence, Etc.................................................................................... 18
9.04 Insurance......................................................................................... 18
9.05 Prohibition of Fundamental Changes................................................................ 18
9.06 Governmental Approvals............................................................................. 19
9.07 Use of Proceeds.................................................................................... 19
9.08 Certain Obligations Regarding Collateral........................................................... 19
Section 10. Events of Default................................................................................... 19
Section 11. Miscellaneous....................................................................................... 22
11.01 Waiver........................................................................................... 22
11.02 Notices.......................................................................................... 23
11.03 Expenses......................................................................................... 23
11.04 Indemnification.................................................................................. 23
11.05 Amendments, Etc.................................................................................. 23
11.06 Successors and Assigns........................................................................... 23
11.07 Assignments and Participations................................................................... 23
11.08 Survival......................................................................................... 24
11.09 Captions......................................................................................... 24
11.10 Counterparts..................................................................................... 24
11.11. Judgment Currency............................................................................... 24
11.12 Governing Law.................................................................................... 25
11.13 Jurisdiction; Service of Process; Venue.......................................................... 25
11.14 No Immunity...................................................................................... 25
11.15 Waiver of Jury Trial............................................................................. 26
11.16 Use of English Language.......................................................................... 26
11.17 Public Information............................................................................... 26
(ii)
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SCHEDULE I - Material Agreements and Liens
EXHIBIT A - Form of Note
EXHIBIT B - Form of Security Agreement
EXHIBIT C - Form of Financing Agreement
EXHIBIT D - Form of Registration Rights Agreement
EXHIBIT E-1 - Form of Opinion of Netherlands Counsel to the Obligors
EXHIBIT E-2 - Form of Opinion of Netherlands Antilles Counsel to the Obligors
EXHIBIT E-3 - Form of Opinion of Cayman Islands Counsel to the Obligors
EXHIBIT E-4 - Form of Opinion of New York Counsel to the Lender
(iii)
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CREDIT AGREEMENT dated as of July 6, 2000 among:
(a) ASM INTERNATIONAL N.V., a company duly organized and
validly existing under the laws of the Kingdom of the Netherlands (the
"Company");
(b) ADVANCED SEMICONDUCTOR MATERIALS (NETHERLANDS ANTILLES)
N.V., a company duly organized and validly existing under the laws of
the Netherlands Antilles (the "Guarantor" and, collectively with the
Company, the "Obligors"); and
(c) CANADIAN IMPERIAL BANK OF COMMERCE, a bank duly organized
and validly existing under the laws of Canada, acting through its New
York agency (the "Lender").
The Obligors have requested that the Lender make loans to the Company
in an aggregate principal amount not exceeding U.S.$75,000,000, the Lender is
willing to make such loans on the terms and conditions of this Agreement and,
accordingly, the parties hereto agree as follows:
Section 1. Definitions and Accounting Matters.
1.01 Certain Defined Terms. As used herein, the following terms shall
have the following meanings (all terms defined in this Section 1.01 or in other
provisions of this Agreement in the singular to have the same meanings when used
in the plural and vice versa):
"Additional ASM Pacific Shares" shall mean 82,427,500 ASM Pacific
Shares.
"ASM Pacific" shall mean ASM Pacific Technology Limited, a Cayman
Islands company.
"ASM Pacific Collateral Value" shall mean, with respect to any ASM
Pacific Share for any day occurring in any period set forth below, the
percentage set forth below opposite such period of the ASM Pacific Market Value:
Period Percentage
The Closing Date to (but excluding) 26.67%
the first Principal Payment Date
The first Principal Payment Date to 23.67%
(but excluding) the second Principal
Payment Date
The second Principal Payment Date to 20.67%
(but excluding) the third Principal
Payment Date
The third Principal Payment Date to 17.67%
(but excluding) the fourth Principal
Payment Date
The fourth Principal Payment Date to 14.67%
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(but excluding) the fifth Principal
Payment Date
The fifth Principal Payment Date to 11.67%
(but excluding) the sixth Principal
Payment Date
The sixth Principal Payment Date to 8.67%
(but excluding) the seventh Principal
Payment Date
The seventh Principal Payment Date 5.67%
and all times thereafter
"ASM Pacific Market Value" shall mean, with respect to any ASM Pacific
Shares for any day, the price per share of ASM Pacific Shares, as reported by
Bloomberg as the average weighted price for such day.
"ASM Pacific Shares" shall mean shares of common stock of ASM Pacific.
"Basic Documents" shall mean, collectively, this Agreement, the Notes,
the Security Documents and the Equity Line Documents.
"Bloomberg" shall have the meaning given to that term in the Financing
Agreement.
"Business Day" shall mean (a) any day on which commercial banks are not
authorized or required to close in New York City and (b) if such day relates to
a borrowing of, a payment or prepayment of principal of or interest on, or an
Interest Period for, a Loan or a notice by the Company with respect to any such
borrowing, payment, prepayment or Interest Period, any day on which dealings in
Dollar deposits are carried out in the London interbank market.
"Capital Lease Obligations" shall mean, for any Person, all obligations
of such Person to pay rent or other amounts under a lease of (or other agreement
conveying the right to use) Property to the extent such obligations are required
to be classified and accounted for as a capital lease on a balance sheet of such
Person under GAAP, and, for purposes of this Agreement, the amount of such
obligations shall be the capitalized amount thereof, determined in accordance
with GAAP.
"Closing Date" shall mean the date upon which the initial Loan is made.
"Commitment" shall mean the obligation of the Lender to make one or
more Loans in an aggregate amount up to but not exceeding U.S.$75,000,000 (as
the same may be reduced from time to time pursuant to Section 2.03 hereof).
"Commitment Termination Date" shall mean October 6, 2000.
"Common Stock" shall have the meaning given to that term in the
Financing Agreement
"Company Put Notice" shall have the meaning given to that term in the
Financing Agreement.
"Control Agreement" shall mean a Control Agreement among the Guarantor,
the Lender and the Securities Intermediary, in form and substance satisfactory
to the Lender.
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"Default" shall mean an Event of Default or an event that with notice
or lapse of time or both would become an Event of Default.
"Default Interest Period" shall mean, during any period while any
principal of a Loan, interest thereon or any other amount owing hereunder is in
default, each successive period as the Lender shall from time to time choose;
provided that (a) no such period shall exceed three months, and (b) the first
such period shall commence as of the date on which such principal, interest or
other amount became due and each succeeding such period shall commence upon the
expiry of the immediately preceding such period.
"Dollars" and "U.S.$" shall mean lawful money of the United States of
America.
"Equity Line Documents" shall mean the Registration Rights Agreement
and the Financing Agreement.
"Eurodollar Rate" shall mean, with respect to any Loan for any Interest
Period or Default Interest Period therefor, the rate per annum (rounded upwards,
if necessary, to the nearest 1/16 of 1%) reported, at approximately 11:00 a.m.
London time (or as soon thereafter as practicable) on the date two Business Days
prior to the first day of such Interest Period or Default Interest Period, on
Telerate Access Service Page 3750 (British Bankers Association Settlement Rate)
as the London interbank offered rate for Dollar deposits having a term
comparable to the duration of such Interest Period and an in amount equal to or
greater than U.S.$1,000,000.
"Event of Default" shall have the meaning assigned to such term in
Section 10 hereof.
"Financing Agreement" shall mean an Equity Line Financing Agreement
between the Company and the Investor, substantially in the form of Exhibit C
hereto, as the same may be modified and supplemented and in effect from time to
time.
"GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect on December 31, 1999.
"Guarantee" shall mean a guarantee, an endorsement, a contingent
agreement to purchase or to furnish funds for the payment or maintenance of, or
otherwise to be or become contingently liable under or with respect to, the
Indebtedness, other obligations, net worth, working capital or earnings of any
Person, or a guarantee of the payment of dividends or other distributions upon
the stock or equity interests of any Person, or an agreement to purchase, sell
or lease (as lessee or lessor) Property, products, materials, supplies or
services primarily for the purpose of enabling a debtor to make payment of such
debtor's obligations or an agreement to assure a creditor against loss, and
including, without limitation, causing a bank or other financial institution to
issue a letter of credit or other similar instrument for the benefit of another
Person, but excluding endorsements for collection or deposit in the ordinary
course of business. The terms "Guarantee" and "Guaranteed" used as a verb shall
have a correlative meaning.
"Indebtedness" shall mean, for any Person: (a) obligations created,
issued or incurred by such Person for borrowed money (whether by loan, the
issuance and sale of debt securities or the sale of Property to another Person
subject to an understanding or agreement, contingent or otherwise, to repurchase
such Property from such Person); (b) obligations of such Person to pay the
deferred purchase or acquisition price of Property or services, other than trade
accounts payable (other than for borrowed money) arising, and accrued expenses
incurred, in the ordinary course of business; (c) Indebtedness of others secured
by a Lien on the Property of such Person, whether or not the respective
indebtedness so secured has been assumed by such Person; (d) obligations of such
Person in respect of letters of credit or similar instruments issued or accepted
by banks and other financial institutions for account of such Person; (e)
Capital Lease Obligations of such Person; and (f) Indebtedness of others
Guaranteed by such Person.
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"Initial ASM Pacific Shares" shall mean 125,000,000 shares of ASM
Pacific Stock.
"Interest Period" shall mean, with respect to any Loan, each period
commencing on the date such Loan is made or the last day of the next preceding
Interest Period for such Loan and ending on the numerically corresponding day in
the third calendar month thereafter, except that (a) each Interest Period that
commences on the last Business Day of a calendar month (or on any day for which
there is no numerically corresponding day in the appropriate subsequent calendar
month) shall end on the last Business Day of the appropriate subsequent calendar
month, and (b) the last day of the initial Interest Period for any Loan made
subsequent to the Closing Date shall be last day of the initial Interest Period
for the Loans made on the Closing Date. Notwithstanding the foregoing, each
Interest Period that would otherwise end on a day that is not a Business Day
shall end on the next succeeding Business Day (or, if such next succeeding
Business Day falls in the next succeeding calendar month, on the next preceding
Business Day).
"Interest Rate Protection Agreement" shall mean, for any Person, an
interest rate swap, cap or collar agreement or similar arrangement between such
Person and one or more financial institutions providing for the transfer or
mitigation of interest risks either generally or under specific contingencies.
"Investor" shall have the meaning given to that term in the Financing
Agreement.
"Investor Call Notice" shall have the meaning given to that term in the
Financing Agreement.
"Lender's Account" shall mean account no. 000-0000-000 of the Lender
maintained at The Bank of New York (ABA No. 021-000-018) (Attn: Atlanta
Operations, Reference: ASM International N.V.), or such other account at such
other bank as the Lender shall specify from time to time to the Company.
"Lending Office" shall mean the "Lending Office" of the Lender (or of
an affiliate of the Lender) designated on the signature pages hereof or such
other office of the Lender (or of an affiliate of the Lender) as the Lender may
from time to time specify to the Company as the office at which its Loans are to
be made and maintained.
"Lien" shall mean, with respect to any Property, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
Property. For purposes of this Agreement and the other Basic Documents, a Person
shall be deemed to own subject to a Lien any Property that it has acquired or
holds subject to the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement (other than an
operating lease) relating to such Property.
"Loans" shall mean the loans provided for by Section 2.01 hereof.
"Margin" shall mean 1.85% per annum.
"Margin Call Event" shall have the meaning given to that term in
Section 9.10(b) hereof.
"Margin Stock" shall mean "margin stock" within the meaning of
Regulations U.
"Market Capitalization Decline" shall mean that for five consecutive
Trading Days the aggregate market value of all shares of capital stock of the
Company shall be less than U.S.$1,000,000,000. For this purpose, the "market
value" on any Business Day of any share of capital stock of the Company shall be
the weighted average price for such day as reported by Bloomberg.
"Material Adverse Effect" shall mean a material adverse effect on (a)
the Property, business, operations, financial condition, prospects, liabilities
or capitalization of the Company, (b) the ability of any Obligor to perform its
obligations under any of the Basic Documents to which it is a party, (c) the
validity or enforceability of any of
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the Basic Documents, (d) the rights and remedies of the Lender under any of the
Basic Documents or (e) the timely payment of the principal of or interest on the
Loans or other amounts payable in connection therewith.
"Netherlands" shall mean the Kingdom of the Netherlands.
"Netherlands Antilles" shall mean the Netherlands Antilles.
"Notes" shall mean the promissory note provided for by Section 2.05
hereof and all promissory notes delivered in substitution or exchange therefor,
in each case as the same shall be modified and supplemented and in effect from
time to time.
"Person" shall mean any individual, corporation, company, voluntary
association, partnership, joint venture, trust, unincorporated organization or
government (or any agency, instrumentality or political subdivision thereof).
"Post-Default Rate" shall mean, in respect of any principal of any
Loan, interest thereon or any other amount owing hereunder that is not paid when
due (whether at stated maturity, by acceleration, by optional or mandatory
prepayment or otherwise), a rate per annum for each Default Interest Period
equal to (x) 2% plus (y) the Margin plus (z) the Eurodollar Rate for such
Default Interest Period.
"Principal Payment Dates" shall mean April 6, July 6, October 6 and
January 6 of each year, commencing with October 6, 2000; provided that if any
such day is not a Business Day, then such Quarterly Date shall be the next
succeeding Business Day (unless such Business Day falls in a subsequent calendar
month, in which event such Quarterly Date shall be the next preceding Business
Day).
"Process Agent" has the meaning given to that term in Section 11.13(b)
hereof.
"Property" shall mean any right or interest in or to property of any
kind whatsoever, whether real, personal or mixed and whether tangible or
intangible.
"Purchase Price" shall have the meaning given to that term in the
Financing Agreement
"Registration Rights Agreement" shall mean a Registration Rights
Agreement between the Company and the Investor, substantially in the form of
Exhibit D hereto, as the same may be modified and supplemented and in effect
from time to time.
"Regulations A, D and U" shall mean, respectively, Regulations A, D and
U of the Board of Governors of the Federal Reserve System of the United States
of America (or any successor), as the same may be modified and supplemented and
in effect from time to time.
"Regulatory Change" shall mean, with respect to the Lender, any change
after the date of this Agreement in law or regulations (including, without
limitation, Regulation D) or the adoption or making after such date of any
interpretation, directive or request applying to a class of financial
institutions including the Lender of or under any law or regulations (whether or
not having the force of law and whether or not failure to comply therewith would
be unlawful) by any court or governmental or monetary authority charged with the
interpretation or administration thereof.
"Security Agreement" shall mean a Security Agreement between the
Guarantor and the Lender, Substantially in the form of Exhibit B hereto, as the
same may be modified and supplemented and in effect from time to time.
"Security Documents" shall mean, collectively, the Security Agreement
and the Control Agreement.
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"Securities Intermediary" shall mean CIBC World Markets Corp.
"Subsidiary" shall mean, with respect to any Person, any corporation,
partnership or other entity of which at least a majority of the securities or
other ownership interests having by the terms thereof ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions of such corporation, partnership or other entity (irrespective of
whether or not at the time securities or other ownership interests of any other
class or classes of such corporation, partnership or other entity shall have or
might have voting power by reason of the happening of any contingency) is at the
time directly or indirectly owned or controlled by such Person or one or more
Subsidiaries of such Person or by such Person and one or more Subsidiaries of
such Person, provided that Subsidiaries of the Company shall be deemed to be
only those Subsidiaries of the Company that, from time to time, constitute
"significant subsidiaries" of the Company within the meaning of Rule 1-02(w) of
Regulation S-X under the United States Securities Act of 1933.
"Taxes" shall mean all present and future income, stamp, registration
and other taxes and levies, imposts, deductions, charges, compulsory loans and
withholdings whatsoever, and all interest, penalties or similar amounts with
respect thereto, now or hereafter imposed, assessed, levied or collected by the
Netherlands or the Netherlands Antilles or any political subdivision or taxing
authority thereof or therein, or by any federation or association of or with
which the Netherlands or the Netherlands Antilles may be a member or associated,
on or in respect of this Agreement, the Loans, the Notes, the other Basic
Documents, the recording, registration, notarization or other formalization of
any thereof, the enforcement thereof or the introduction thereof in any judicial
proceedings, or on or in respect of any payments of principal, interest,
premiums, charges, fees or other amounts made on, under or in respect of any
thereof.
"Trading Day" shall have the meaning given to that term in the
Financing Agreement.
1.02 Accounting Terms and Determinations. Unless otherwise specified
herein, all accounting terms used herein shall be interpreted, all
determinations with respect to accounting matters hereunder shall be made, and
all financial statements and certificates and reports as to financial matters
required to be furnished to the Lender hereunder shall be prepared, in
accordance with GAAP, applied on a basis consistent with that used in the
audited consolidated financial statements of the Company and its consolidated
Subsidiaries referred to in Section 8.02 hereof (except for changes concurred
with by the Company's independent public accountants).
Section 2.0 Commitments, Loans, Notes and Prepayments.
2.01 Loans. The Lender severally agrees, on the terms and conditions of
this Agreement, to make one or more term loans to the Company in Dollars on or
before the Commitment Termination Date in an aggregate principal amount up to
but not exceeding the amount of the Commitment.
2.02 Borrowings. The Company shall give the Lender notice of each
borrowing hereunder as provided in Section 4.04 hereof. Not later than 1:00 p.m.
New York time on the date specified for each borrowing hereunder, the Lender
shall, subject to the terms and conditions of this Agreement, be made available
to the Company by depositing the same, in immediately available funds, in an
account of the Company maintained at a bank in New York City designated by the
Company.
2.03 Commitment Reductions and Termination. The Company shall have the
right at any time or from time to time to terminate or reduce the unused amount
of the Commitment; provided that (x) the Company shall give notice of each such
termination or reduction as provided in Section 4.04 hereof and (y) each partial
reduction shall be in an aggregate amount at least equal to U.S.$5,000,000 (or a
larger multiple of U.S.$1,000,000).
2.04 Lending Offices. The Loans shall be made and maintained at the
Lending Office.
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2.05 Notes. The Loans shall be evidenced by a single promissory note of
the Company substantially in the form of Exhibit A hereto, dated the date
hereof, payable to the Lender in a principal amount equal to the amount of the
Commitment and otherwise duly completed.
2.06 Optional Prepayments. Subject to Section 4.03 hereof, the Company
shall have the right to prepay Loans at any time or from time to time, provided
that: (a) the Company shall give the Lender notice of each such prepayment as
provided in Section 4.04 hereof (and, upon the date specified in any such notice
of prepayment, the amount to be prepaid shall become due and payable hereunder);
(b) except for payments made in the manner contemplated by Section 4.01(b)
hereof, Loans may be prepaid only on the last day of an Interest Period for such
Loans; and (c) prepayments of the Loans shall be applied to the installments of
the Loans in the inverse order of their maturities.
Section 3. Payments of Principal and Interest.
3.01 Repayment of Loans. The Company hereby promises to pay to the
Lender the principal of the Loans in eight installments payable on the Principal
Payment Dates as follows:
Principal Payment Date Amount of Installment
First U.S.$ 6,000,000
Second U.S.$ 6,000,000
Third U.S.$ 6,000,000
Fourth U.S.$ 9,000,000
Fifth U.S.$ 9,000,000
Sixth U.S.$ 9,000,000
Seventh U.S.$ 9,000,000
Eighth U.S.$21,000,000
If the Company does not borrow the full amount of the Commitment on or before
the Commitment Termination Date, the shortfall shall be applied to reduce the
foregoing installments ratably.
3.02 Interest. The Company hereby promises to pay to the Lender
interest on the unpaid principal amount of each Loan for the period from and
including the date of such Loan to but excluding the date such Loan shall be
paid in full, at a rate per annum, for each Interest Period relating thereto,
equal to the Eurodollar Rate for such Loan for such Interest Period plus the
Margin. Notwithstanding the foregoing, the Company hereby promises to pay to the
Lender interest at the applicable Post-Default Rate on any principal of any Loan
and on any other amount payable by the Company hereunder or under the Notes that
shall not be paid in full when due (whether at stated maturity, by acceleration,
by mandatory prepayment or otherwise) for the period from and including the due
date thereof to but excluding the date the same is paid in full. Accrued
interest on each Loan shall be payable (i) on the last day of each Interest
Period therefor, and (ii) upon the payment or prepayment thereof (but only on
the principal amount so paid or prepaid), except that interest payable at the
Post-Default Rate shall be payable from time to time on demand. Promptly after
the determination of any interest rate provided for herein or any change
therein, the Lender shall give notice thereof to the Company.
Section 4. Payments; Pro Rata Treatment; Computations; Etc.
4.01 Payments.
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(a) Except to the extent provided in Section 4.01(b) hereof, all
payments of principal, interest and other amounts to be made by the Company
under this Agreement and the Notes, and, except to the extent otherwise provided
therein, all payments to be made by the Obligors under any other Basic Document,
shall be made in Dollars, in immediately available funds, without deduction,
set-off or counterclaim, to the Lender at the Lender's Account, not later than
1:00 p.m. New York time on the date on which such payment shall become due (each
such payment made after such time on such due date to be deemed to have been
made on the next succeeding Business Day).
(b) In addition to making payments as provided in Section 4.01(a)
hereof, to the extent that, on any Business Day, any shares of Common Stock are
issued to the Investor pursuant to Section 2.4 of the Financing Agreement, the
Company shall have been deemed to have made a payment of principal hereunder
(and each reference in this Agreement to a "payment" shall be deemed to include
such a payment deemed to have been made as contemplated by this Section 4.01(b))
on such Business Day in an amount equal to the Loan Reduction Amount, if any, or
the Investor Call Amount, as applicable.
(c) The Company shall, at the time of making each payment under this
Agreement or any Note, specify to the Lender the Loans or other amounts payable
by the Company hereunder to which such payment is to be applied (and in the
event that the Company fails to so specify, or if an Event of Default has
occurred and is continuing, the Lender may apply such payment as it may
determine to be appropriate).
(d) If the due date of any payment under this Agreement or any Note
would otherwise fall on a day that is not a Business Day, such date shall be
extended to the next succeeding Business Day, and interest shall be payable for
any principal so extended for the period of such extension.
4.02 Computations. Interest on Loans shall be computed on the basis of
a year of 360 days and actual days elapsed (including the first day but
excluding the last day) occurring in the period for which payable.
4.03 Minimum Amounts. Each borrowing and partial prepayment of
principal of Loans shall be in an aggregate amount at least equal to
U.S.$5,000,000 or a larger multiple of U.S.$1,000,000.
4.04 Certain Notices. Notices by the Company to the Lender of
terminations or reductions of the Commitments, of borrowings and optional
prepayments of Loans shall be irrevocable and shall be effective only if
received by the Lender not later than 10:00 a.m. New York time three Business
Days prior to the date of the relevant termination, reduction, borrowing or
prepayment. Each such notice of borrowing or optional prepayment shall specify
the amount (subject to Section 4.03 hereof) of each Loan to be borrowed or
prepaid and the date of borrowing or optional prepayment (which shall be a
Business Day).
4.05 Set-off. Each of the Obligors agrees that, in addition to (and
without limitation of) any right of set-off, banker's lien or counterclaim the
Lender may otherwise have, the Lender shall be entitled, at its option, to
offset balances held by it for account of either of the Obligors at any of its
offices, in Dollars or in any other currency, against any principal of or
interest on the Loans or any other amount payable to the Lender hereunder that
is not paid when due (regardless of whether such balances are then due to such
Obligor), in which case it shall promptly notify the Company thereof, provided
that the Lender's failure to give such notice shall not affect the validity
thereof.
Section 5. Yield Protection, Etc.
5.01 Additional Costs.
(a) The Company shall pay directly to the Lender from time to time such
amounts as the Lender may determine to be necessary to compensate the Lender for
any costs that the Lender determines are attributable to its
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making or maintaining of any Loans or its obligation to make any Loans
hereunder, or any reduction in any amount receivable by the Lender hereunder in
respect of any Loans or such obligation (such increases in costs and reductions
in amounts receivable being herein called "Additional Costs"), resulting from
any Regulatory Change that:
(i) shall subject the Lender (or its Lending Office) to any
tax, duty or other charge in respect of such Loans or its Notes or
changes the basis of taxation of any amounts payable to the Lender
under this Agreement or its Notes in respect of Loans (excluding
changes in the rate of tax on the overall net income of the Lender or
of such Lending Office by the jurisdiction in which the Lender has its
principal office or such Lending Office); or
(ii) imposes or modifies any reserve, special deposit or
similar requirements relating to any extensions of credit or other
assets of, or any deposits with or other liabilities of, the Lender
(including, without limitation, any of such Loans or any deposits
referred to in the definition of "Eurodollar Rate" in Section 1.01
hereof), or any commitment of the Lender (including, without
limitation, the Commitment of the Lender hereunder); or
(iii) imposes any other condition affecting this Agreement or
its Notes (or any of such extensions of credit or liabilities) or its
Commitment.
(b) Without limiting the effect of the foregoing provisions of this
Section 5.01 (but without duplication), the Company shall pay directly to the
Lender from time to time on request such amounts as the Lender may determine to
be necessary to compensate the Lender (or, without duplication, the bank holding
company of which the Lender is a subsidiary) for any costs that it determines
are attributable to the maintenance by the Lender (or any Lending Office or such
bank holding company), pursuant to any law or regulation or any interpretation,
directive or request (whether or not having the force of law and whether or not
failure to comply therewith would be unlawful) of any court or governmental or
monetary authority (i) following any Regulatory Change or (ii) implementing any
risk-based capital guideline or other requirement (whether or not having the
force of law and whether or not the failure to comply therewith would be
unlawful) heretofore or hereafter issued by any government or governmental or
supervisory authority implementing at the national level the Basle Accord, of
capital in respect of its Commitments or Loans (such compensation to include,
without limitation, an amount equal to any reduction of the rate of return on
assets or equity of the Lender (or any Lending Office or such bank holding
company) to a level below that which the Lender (or any Lending Office or such
bank holding company) could have achieved but for such law, regulation,
interpretation, directive or request). For purposes of this Section 5.01(b),
"Basle Accord" shall mean the proposals for risk-based capital framework
described by the Basle Committee on Banking Regulations and Supervisory
Practices in its paper entitled "International Convergence of Capital
Measurement and Capital Standards" dated July 1988, as amended, modified and
supplemented and in effect from time to time or any replacement thereof.
(c) The Lender shall notify the Company of any event occurring after
the date of this Agreement entitling the Lender to compensation under paragraph
(a) or (b) of this Section 5.01 as promptly as practicable, but in any event
within 45 days, after the Lender obtains actual knowledge thereof; provided that
(i) if the Lender fails to give such notice within 45 days after it obtains
actual knowledge of such an event, the Lender shall, with respect to
compensation payable pursuant to this Section 5.01 in respect of any costs
resulting from such event, only be entitled to payment under this Section 5.01
for costs incurred from and after the date 45 days prior to the date that the
Lender does give such notice and (ii) the Lender will designate a different
Lending Office for the Loans of the Lender if such designation will avoid the
need for, or reduce the amount of, such compensation and will not, in the sole
opinion of the Lender, be disadvantageous to the Lender, except that the Lender
shall have no obligation to designate a Lending Office located in the United
States of America. The Lender will furnish to the Company a certificate setting
forth the basis and amount of each request by the Lender for compensation under
paragraph (a) or (b) of this Section 5.01. Determinations and allocations by the
Lender for purposes of this Section 5.01 of the effect of any Regulatory Change
pursuant to paragraph (a) or (b) of this Section 5.01, or of the effect of
capital
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maintained pursuant to paragraph (b) of this Section 5.01, on its costs or rate
of return of maintaining Loans or its obligation to make Loans, or on amounts
receivable by it in respect of Loans, and of the amounts required to compensate
the Lender under this Section 5.01, shall be conclusive, provided that such
determinations and allocations are made on a reasonable basis.
5.02 Alternative Interest Rate. Anything herein to the contrary
notwithstanding, if, on or prior to the determination of any Eurodollar Rate for
any Interest Period or Default Interest Period:
(a) the Lender determines, which determination shall be
conclusive, that quotations of interest rates for the relevant deposits
referred to in the definition of "Eurodollar Rate" in Section 1.01
hereof are not being provided in the relevant amounts or for the
relevant maturities for purposes of determining rates of interest for
Loans as provided herein; or
(b) the Lender determines, which determination shall be
conclusive, that the relevant rates of interest referred to in the
definition of "Eurodollar Rate" in Section 1.01 hereof upon the basis
of which the rate of interest for Loans for such Interest Period or
Default Interest Period is to be determined are not likely to
adequately cover the cost to the Lender of making or maintaining Loans
for such Interest Period or Default Interest Period;
then the Lender shall give the Company prompt notice thereof and:
(a) during the 15-day period next succeeding the date of any
such notice (the "Negotiation Period"), the Lender and the Company will
negotiate in good faith for the purpose of agreeing upon an
alternative, mutually acceptable basis (the "Substitute Basis") for
determining the rate of interest to be applicable to the Loans for such
Interest Period;
(b) if at the expiry of the Negotiation Period, the Lender and
the Company have agreed upon a Substitute Basis and the Lender has
received confirmation from its Netherlands counsel that such Substitute
Basis has received all necessary governmental approvals and consents,
the Substitute Basis shall be retroactive to, and take effect from, the
beginning of such Interest Period or Default Interest Period;
(c) if at the expiry of the Negotiation Period, a Substitute
Basis shall not have been agreed upon as aforesaid or the Lender shall
not have received the above mentioned confirmation as to requisite
governmental approvals or consents, within five Business Days
thereafter, the Lender shall notify the Company of the cost to the
Lender (as determined by it in good faith) of funding and maintaining
such Loan for such Interest Period or Default Interest Period; and the
interest payable to the Lender on such Loan for such Interest Period
shall be interest at a rate per annum equal to the Margin plus the cost
to the Lender of funding and maintaining such Loan for such Interest
Period or Default Interest Period as so notified by the Lender (or, as
to any principal of such Loan or other amount payable to the Lender on
or in respect of such Loan which is then past due, 2% plus the Margin
plus such cost); and
(d) the procedures specified in clauses (a), (b) and (c) above
shall apply to each Interest Period or Default Interest Period
succeeding the first Interest Period or Default Interest Period to
which they were applied unless and until the Lender shall determine
that the conditions referred to in clause (i) or clause (ii) above no
longer exist and so notifies the Company and the Lender, whereupon
interest on such Loans shall again be determined in accordance with the
provisions of Section 3.02 hereof commencing on the first day of the
Interest Period or Default Interest Period next succeeding the date of
such notice.
5.03 Illegality. Notwithstanding any other provision of this Agreement,
in the event that it becomes unlawful for the Lender or its Lending Office to
honor its obligation to make or maintain any of its Loans hereunder (and, in the
sole opinion of the Lender, the designation of a different Lending Office would
either not avoid such unlawfulness or would be disadvantageous to the Lender),
then the Lender shall promptly notify the Company
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thereof and the Lender's obligation to make Loans shall be suspended until such
time as the Lender may again make and maintain Loans and, if any of the Lender's
Loans are then outstanding, the Company shall, upon the request of the Lender,
promptly prepay the principal of such Loans together with accrued interest
thereon.
5.04 Taxes.
(a) All payments on account of the principal of and interest on the
Loans, fees and all other amounts payable hereunder by the Obligors to or for
the account of the Lender, including, without limitation, amounts payable under
clause (b) of this Section 5.04, shall be made free and clear of and without
reduction or liability for Taxes. The Obligors will pay all Taxes for their own
respective accounts, prior to the date on which penalties attach thereto, except
for any Taxes (other than Taxes imposed on or in respect of any amount payable
hereunder, under the Notes or under any other Basic Document) the payment of
which is being contested in good faith and by proper proceedings and against
which adequate reserves are being maintained, so long as no claim for such Taxes
is made on the Lender.
(b) Each of the Obligors shall indemnify the Lender against, and
reimburse the Lender on demand for, any Taxes and any loss, liability, claim or
expense, including interest, penalties and legal fees, which the Lender may
incur at any time arising out of or in connection with any failure of any
Obligor to make any payment of Taxes when due.
(c) In the event that any Obligor is required by applicable law, decree
or regulation to deduct or withhold Taxes from any amounts payable on, under or
in respect of this Agreement or the Loans (including, without limitation, the
income taxes referred to in clause (e) of this Section 5.04), such Obligor shall
promptly pay the Person entitled to such amount such additional amounts as may
be required, after the deduction or withholding of Taxes to enable such Person
to receive from such Obligor, on the due date thereof, an amount equal to the
full amount stated to be payable to such Person under this Agreement.
(d) Each Obligor shall furnish to the Lender, upon the request of the
Lender, together with sufficient certified copies for distribution to each
Lender requesting the same original official tax receipts in respect of each
payment of Taxes required under this Section 5.04, within 30 days after the date
such payment is made, and the Obligors shall promptly furnish to the Lender at
its request or at the request of the Lender any other information, documents and
receipts that the Lender may reasonably require to establish to its satisfaction
that full and timely payment has been made of all Taxes required to be paid
under this Section 5.04.
(e) Each Obligor represents and warrants to the Lender that, on and as
of the date of this Agreement, none of this Agreement, any other Basic Document,
or the execution or delivery by any Obligor of this Agreement or any other Basic
Document, is subject to any Taxes, and no payment to be made by any Obligor
under this Agreement is subject to any Taxes, and no payment to be made by any
Obligor under this Agreement is subject to any Taxes.
5.05 Compensation. The Company shall pay to the Lender, upon the
request of the Lender, such amount or amounts as shall be sufficient (in the
reasonable opinion of the Lender) to compensate it for any loss, cost or expense
that the Lender determines is attributable to:
(a) any payment or mandatory or optional prepayment of a Loan
made by the Lender for any reason (including, without limitation, the
acceleration of the Loans pursuant to Section 10 hereof) on a date
other than the last day of an Interest Period for such Loan; or
(b) any failure by the Company for any reason (including,
without limitation, the failure of any of the conditions precedent
specified in Section 7 hereof to be satisfied) to borrow a Loan from
the Lender on the date for such borrowing specified in the relevant
notice of borrowing given pursuant to Section 2.02 hereof.
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Without limiting the effect of the preceding sentence, such compensation shall
include an amount equal to the excess, if any, of (i) the amount of interest
that otherwise would have accrued on the principal amount so paid, prepaid, or
not borrowed for the period from the date of such payment, prepayment, or
failure to borrow to the last day of the then current Interest Period for such
Loan (or, in the case of a failure to borrow, the Interest Period for such Loan
that would have commenced on the date specified for such borrowing) at the
applicable rate of interest for such Loan provided for herein over (ii) the
amount of interest that otherwise would have accrued on such principal amount at
a rate per annum equal to the interest component of the amount the Lender would
have bid in the London interbank market for Dollar deposits of leading banks in
amounts comparable to such principal amount and with maturities comparable to
such period (as reasonably determined by the Lender).
Section 6. Guarantee.
6.01 The Guarantee. The Guarantor hereby guarantees to the Lender and
its successors and assigns the prompt payment in full when due (whether at
stated maturity, by acceleration or otherwise) of the principal of and interest
on the Loans and all other amounts from time to time owing to the Lender by the
Company under this Agreement and under the Notes and by any Obligor under any of
the other Basic Documents, in each case strictly in accordance with the terms
thereof (such obligations being herein collectively called the "Guaranteed
Obligations"). The Guarantor hereby further agrees that if the Company shall
fail to pay in full when due (whether at stated maturity, by acceleration or
otherwise) any of the Guaranteed Obligations, the Guarantor will promptly pay
the same, upon demand, and that in the case of any extension of time of payment
or renewal of any of the Guaranteed Obligations, the same will be promptly paid
in full when due (whether at extended maturity, by acceleration or otherwise) in
accordance with the terms of such extension or renewal.
6.02 Obligations Unconditional. The obligations of the Guarantor under
Section 6.01 hereof are absolute and unconditional, joint and several,
irrespective of the value, genuineness, validity, regularity or enforceability
of the obligations of the Company under this Agreement, the Notes or any other
agreement or instrument referred to herein or therein, or any substitution,
release or exchange of any other guarantee of or security for any of the
Guaranteed Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this Section 6.02 that the obligations of the Guarantor
hereunder shall be absolute and unconditional under any and all circumstances.
Without limiting the generality of the foregoing, it is agreed that the
occurrence of any one or more of the following shall not alter or impair the
liability of the Guarantor hereunder, which shall remain absolute and
unconditional as described above:
(i) at any time or from time to time, without notice to the
Guarantor, the time for any performance of or compliance with any of
the Guaranteed Obligations shall be extended, or such performance or
compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of
this Agreement or the Notes or any other agreement or instrument
referred to herein or therein shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall
be accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under this
Agreement or the Notes or any other agreement or instrument referred to
herein or therein shall be waived or any other guarantee of any of the
Guaranteed Obligations or any security therefor shall be released or
exchanged in whole or in part or otherwise dealt with; or
(iv) any lien or security interest granted to, or in favor of,
the Lender as security for any of the Guaranteed Obligations shall fail
to be perfected.
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The Guarantor hereby expressly waives diligence, presentment, demand of payment,
protest and all notices whatsoever, and any requirement that the Lender exhaust
any right, power or remedy or proceed against the Company under this Agreement
or the Notes or any other agreement or instrument referred to herein or therein,
or against any other Person under any other guarantee of, or security for, any
of the Guaranteed Obligations.
6.03 Reinstatement. The obligations of the Guarantor under this Section
6 shall be automatically reinstated if and to the extent that for any reason any
payment by or on behalf of the Company in respect of the Guaranteed Obligations
is rescinded or must be otherwise restored by any holder of any of the
Guaranteed Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise and the Guarantors jointly and severally agree that
they will indemnify the Lender on demand for all reasonable costs and expenses
(including, without limitation, fees of counsel) incurred by the Lender in
connection with such rescission or restoration, including any such costs and
expenses incurred in defending against any claim alleging that such payment
constituted a preference, fraudulent transfer or similar payment under any
bankruptcy, insolvency or similar law.
6.04 Subrogation. The Guarantor hereby agrees that until the payment
and satisfaction in full of all Guaranteed Obligations and the expiration and
termination of the Commitment it shall not exercise any right or remedy arising
by reason of any performance by it of its guarantee in Section 6.01 hereof,
whether by subrogation or otherwise, against the Company or any other guarantor
of any of the Guaranteed Obligations or any security for any of the Guaranteed
Obligations.
6.05 Remedies. The Guarantor agrees that, as between the Guarantor and
the Lender, the obligations of the Company under this Agreement and the Notes
may be declared to be forthwith due and payable as provided in Section 10 hereof
(and shall be deemed to have become automatically due and payable in the
circumstances provided in said Section 10) for purposes of Section 6.01 hereof
notwithstanding any stay, injunction or other prohibition preventing such
declaration (or such obligations from becoming automatically due and payable) as
against the Company and that, in the event of such declaration (or such
obligations being deemed to have become automatically due and payable), such
obligations (whether or not due and payable by the Company) shall forthwith
become due and payable by the Guarantor for purposes of said Section 6.01.
6.06 Continuing Guarantee. The guarantee in this Section 6 is a
continuing guarantee, and shall apply to all Guaranteed Obligations whenever
arising.
Section 7. Conditions Precedent.
7.01 Initial Loan. The obligation of the Lender to make its initial
Loan hereunder is subject to the conditions precedent that (i) such Loan shall
be made on or before July 7, 2000 and (ii) the Lender shall have received the
following documents, each of which shall be satisfactory to the Lender in form
and substance:
(a) Corporate Documents. The following documents:
(i) for each Obligor, a copy of its organizational
documents, as amended and in effect, of such Obligor; and
(ii) for each Obligor, the resolutions of its board
of directors (or similar body) authorizing the execution and
delivery of such of the Basic Documents to which such Obligor
is or is intended to be a party.
(b) Officer's Certificate. A certificate of a senior officer
of the Company, dated the Closing Date, to the effect set forth in the
first sentence of Section 7.02 hereof.
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(c) Opinion of Netherlands Counsel to the Obligors. An
opinion, dated the Closing Date, of Stibbe Simont Xxxxxxx Duhot,
counsel to the Obligors, substantially in the form of Exhibit E-1
hereto and covering such other matters as the Lender may reasonably
request (and each Obligor hereby instructs such counsel to deliver such
opinion to the Lender).
(d) Opinion of Netherlands Antilles Counsel to the Obligors.
An opinion, dated the Closing Date, of Smeets Thesseling, counsel to
the Obligors, substantially in the form of Exhibit E-2 hereto and
covering such other matters as the Lender may reasonably request (and
each Obligor hereby instructs such counsel to deliver such opinion to
the Lender).
(e) Opinion of Cayman Islands Counsel to the Obligors. An
opinion, dated the Closing Date, of Xxxxxxx, Xxxx & Xxxxxxx, counsel to
the Obligors, substantially in the form of Exhibit E-3 hereto and
covering such other matters as the Lender may reasonably request (and
each Obligor hereby instructs such counsel to deliver such opinion to
the Lender).
(f) Opinion of Special New York Counsel to the Lender. An
opinion, dated the Closing Date, of Xxxxx, Xxxxx & Xxxxx, special New
York counsel to the Lender, substantially in the form of Exhibit E-4
hereto.
(g) Notes. The Notes, duly completed and executed.
(h) Equity Line Documents. Each of the Equity Line Documents,
duly executed and delivered by the Company and the Investor.
(i) Security Documents. The following:
(i) the Security Agreement, duly executed and
delivered by the Guarantor and the Lender;
(ii) the Control Agreement, duly executed and
delivered by the Guarantor, the Lender and the Securities
Intermediary,
(iii) a certification from the Securities
Intermediary that the Initial ASM Pacific Shares have been
credited to the securities account that is subject to the
Control Agreement, and that the Securities Intermediary has
received the certificates representing the Initial ASM Pacific
Shares together with stock powers duly executed in blank
relating thereto, and
(iv) evidence that the ASM Pacific Collateral Value
of the Initial ASM Pacific Shares is at least equal the amount
of the initial Loan hereunder.
(j) Process Agent. A written acceptance by the Process Agent
of its appointment under Section 11.13(b) hereof.
(k) Other Documents. Such other documents as the Lender or
special New York counsel to the Lender may reasonably request.
7.02 Initial and Subsequent Loans. The obligation of the Lender to make
any Loan to the Company upon the occasion of each borrowing hereunder (including
the initial borrowing) is subject to the further conditions precedent that, both
immediately prior to the making of such Loan and also after giving effect
thereto and to the intended use thereof: (a) no Default shall have occurred and
be continuing; (b) the representations and warranties made by the Obligors in
Section 8 hereof, and by each Obligor in each of the other Basic Documents to
which it is a party, shall be true and complete on and as of the date of the
making of such Loan with the same force and effect as
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if made on and as of such date (or, if any such representation or warranty is
expressly stated to have been made as of a specific date, as of such specific
date), and (c) the ASM Pacific Collateral Value of the Initial ASM Pacific
Shares shall be at least equal to the aggregate principal amount of the Loans.
Each notice of borrowing by the Company hereunder shall constitute a
certification by the Company to the effect set forth in the preceding sentence
(both as of the date of such notice and, unless the Company otherwise notifies
the Lender prior to the date of such borrowing, as of the date of such
borrowing).
Section 8. Representations and Warranties. Each of the Obligors
represents and warrants to the Lender that:
8.01 Corporate Existence. Each of the Obligors, and each of their
respective Subsidiaries, (a) is a corporation, partnership or other entity duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization; (b) has all requisite corporate or other
power, and has all material governmental licenses, authorizations, consents and
approvals necessary to own its assets and carry on its business as now being or
as proposed to be conducted; and (c) is qualified to do business and is in good
standing in all jurisdictions in which the nature of the business conducted by
it makes such qualification necessary and where failure so to qualify could
(either individually or in the aggregate) have a Material Adverse Effect.
8.02 Financial Condition. The Obligors have heretofore furnished to the
Lender a consolidated balance sheet of the Company and its Subsidiaries as at
December 31, 1999 and the related consolidated statements of income, retained
earnings and cash flow of the Company and its Subsidiaries for the fiscal year
ended on said date, with the opinion thereon of Deloitte & Touche, and the
unaudited consolidated balance sheet of the Company and its Subsidiaries as at
March 31, 2000 and the related consolidated statements of income, retained
earnings and cash flow of the Company and its Subsidiaries for the three-month
period ended on such date. All such financial statements are complete and
correct and fairly present the consolidated financial condition of the Company
and its Subsidiaries as at said dates and the consolidated results of their
operations for the fiscal year and three-month period ended on said dates
(subject, in the case of such financial statements as at March 31, 2000, to
normal year-end audit adjustments), all in accordance with generally accepted
accounting principles and practices applied on a consistent basis. None of the
Obligors nor any of their respective Subsidiaries has on the date hereof any
material contingent liabilities, liabilities for taxes, unusual forward or
long-term commitments or unrealized or anticipated losses from any unfavorable
commitments, except as referred to or reflected or provided for in said balance
sheets as at said dates. Since December 31, 1999, there has been no material
adverse change in the consolidated financial condition, operations, business or
prospects taken as a whole of the Company and its Subsidiaries from that set
forth in said financial statements as at said date.
8.03 Litigation. There are no legal or arbitral proceedings, or any
proceedings by or before any governmental or regulatory authority or agency, now
pending or (to the knowledge of any Obligor) threatened against any of the
Obligors or any of their respective Subsidiaries that, if adversely determined
could (either individually or in the aggregate), could reasonably be expected to
have a Material Adverse Effect.
8.04 No Breach. None of the execution and delivery of this Agreement
and the Notes and the other Basic Documents, the consummation of the
transactions herein and therein contemplated or compliance with the terms and
provisions hereof and thereof will conflict with or result in a breach of, or
require any consent under, the organizational documents of any Obligor, or any
applicable law or regulation, or any order, writ, injunction or decree of any
court or governmental authority or agency, or any agreement or instrument to
which any of the Obligors or any of their Subsidiaries is a party or by which
any of them or any of their Property is bound or to which any of them is
subject, or constitute a default under any such agreement or instrument, or
(except for the Liens created pursuant to the Security Documents) result in the
creation or imposition of any Lien upon any Property of any of the Obligor or
any of their respective Subsidiaries pursuant to the terms of any such agreement
or instrument.
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8.05 Action. Each Obligor has all necessary corporate power, authority
and legal right to execute, deliver and perform its obligations under each of
the Basic Documents to which it is a party; the execution, delivery and
performance by each Obligor of each of the Basic Documents to which it is a
party have been duly authorized by all necessary corporate action on its part
(including, without limitation, any required shareholder approvals); and this
Agreement has been duly and validly executed and delivered by each Obligor and
constitutes, and each of the Notes and the other Basic Documents to which it is
a party when executed and delivered by such Obligor (in the case of the Notes,
for value) will constitute, its legal, valid and binding obligation, enforceable
against each Obligor in accordance with its terms.
8.06 Approvals. No authorizations, approvals or consents of, and no
filings or registrations with, any governmental or regulatory authority or
agency, or any securities exchange, are necessary for the execution, delivery or
performance by any Obligor of the Basic Documents to which it is a party or for
the legality, validity or enforceability thereof.
8.07 Margin Regulation. Neither the Company nor any of its Subsidiaries
is engaged principally, or as one of its important activities, in the business
of extending credit for the purpose, whether immediate, incidental or ultimate,
of buying or carrying Margin Stock, and no part of the proceeds of any Loan
hereunder will be used to buy or carry Margin Stock. None of the ASM Pacific
Shares constitute Margin Stock.
8.08 Legal Form. This Agreement and each other Basic Document is in
proper legal form under the law of the Netherlands, the Netherlands Antilles and
the Cayman Islands for the enforcement thereof against each Obligor under such
law, and if this Agreement and each other Basic Document were stated to be
governed by such law, they would constitute legal, valid and binding obligations
of each Obligor under such law, enforceable in accordance with their respective
terms. All formalities required in the Netherlands, the Netherlands Antilles and
the Cayman Islands for the validity and enforceability of this Agreement and
each other Basic Document (including, without limitation, any necessary
registration, recording or filing with any court or other authority in the
Netherlands, the Netherlands Antilles or the Cayman Islands) have been
accomplished, and no Taxes are required to be paid and no notarization is
required, for the validity and enforceability thereof.
8.09 Ranking. This Agreement and each other Basic Document and the
obligations evidenced hereby and thereby are and will at all times be direct and
unconditional general obligations of each Obligor and rank and will at all times
rank in right of payment and otherwise at least pari passu with all other
unsecured Indebtedness of each Obligor, whether now existing or hereafter
outstanding.
8.10 Taxes. The Company and each of its Subsidiaries have filed all tax
returns that are required to be filed by them and have paid all taxes due
pursuant to such returns or pursuant to any assessment received by the Company
or any of its Subsidiaries. The charges, accruals and reserves on the books of
the Company and its Subsidiaries in respect of taxes and other governmental
charges are, in the opinion of the Company, adequate.
8.11 Commercial Activity; Absence of Immunity. Each Obligor is subject
to civil and commercial law with respect to its obligations under each of the
Basic Documents to which it is a party. The execution, delivery and performance
by each Obligor of each Basic Document to which it is a party constitute private
and commercial acts rather than public or governmental acts. None of the
Obligors, nor any of their respective Properties or revenues, is entitled to any
right of immunity in any jurisdiction from suit, court jurisdiction, judgment,
attachment (whether before or after judgment), set-off or execution of a
judgment or from any other legal process or remedy relating to the obligations
of such Obligor under any of the Basic Documents to which it is a party.
8.12 Material Agreements and Liens.
(a) Part A of Schedule I hereto is a complete and correct list, as of
the date of this Agreement, of each credit agreement, loan agreement, indenture,
purchase agreement, guarantee, letter of credit or other arrangement providing
for or otherwise relating to any Indebtedness or any extension of credit (or
commitment for any extension
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of credit) to, or guarantee by, the Company or any of its Subsidiaries, and the
aggregate principal or face amount outstanding or that may become outstanding
under each such arrangement is correctly described in Part A of said Schedule I.
(b) Part B of Schedule I hereto is a complete and correct list, as of
the date of this Agreement, of each Lien securing Indebtedness of any Person
covering any Property of the Company or any of its Subsidiaries, and the
aggregate Indebtedness secured (or that may be secured) by each such Lien and
the Property covered by each such Lien is correctly described in Part B of said
Schedule I.
8.13 True and Complete Disclosure. The information, reports, financial
statements, exhibits and schedules furnished in writing by or on behalf of the
Obligors to the Lender or the Lender in connection with the negotiation,
preparation or delivery of this Agreement and the other Basic Documents or
included herein or therein or delivered pursuant hereto or thereto, when taken
as a whole do not contain any untrue statement of material fact or omit to state
any material fact necessary to make the statements herein or therein, in light
of the circumstances under which they were made, not misleading. All written
information furnished after the date hereof by the Company and its Subsidiaries
to the Lender in connection with this Agreement and the other Basic Documents
and the transactions contemplated hereby and thereby will be true, complete and
accurate in every material respect, or (in the case of projections) based on
reasonable estimates, on the date as of which such information is stated or
certified. There is no fact known to any Obligor that could have a Material
Adverse Effect that has not been disclosed herein, in the other Basic Documents
or in a report, financial statement, exhibit, schedule, disclosure letter or
other writing furnished to the Lenders for use in connection with the
transactions contemplated hereby or thereby.
Section 9. Covenants of the Obligors. The Company covenants and agrees
with Lender that, so long as any Commitment or Loan is outstanding and until
payment in full of all amounts payable by the Company hereunder:
9.01 Financial Statements Etc. The Company shall deliver to the Lender:
(a) as soon as available and in any event within 45 days after
the end of each quarterly fiscal period of each fiscal year of the
Company, a consolidated statement of income, retained earnings and cash
flow of the Company and its Subsidiaries for such period and for the
period from the beginning of the respective fiscal year to the end of
such period, and the related consolidated balance sheet of the Company
and its Subsidiaries as at the end of such period, setting forth in
each case in comparative form the corresponding consolidated figures
for the corresponding periods in the preceding fiscal year, accompanied
by a certificate of a senior financial officer of the Company, which
certificate shall state that said consolidated financial statements
fairly present the consolidated financial condition and results of
operations of the Company and its Subsidiaries in accordance with
generally accepted accounting principles, consistently applied, as at
the end of, and for, such period (subject to normal year-end audit
adjustments);
(b) as soon as available and in any event within 90 days after
the end of each fiscal year of the Company, a consolidated statement of
income, retained earnings and cash flow of the Company and its
Subsidiaries for such fiscal year and the related consolidated balance
sheet of the Company and its Subsidiaries as at the end of such fiscal
year, setting forth in each case in comparative form the corresponding
consolidated figures for the preceding fiscal year, and accompanied by
an opinion thereon of independent certified public accountants of
recognized international standing, which opinion shall state that said
consolidated financial statements fairly present the consolidated
financial condition and results of operations of the Company and its
Subsidiaries as at the end of, and for, such fiscal year in accordance
with generally accepted accounting principles, and a certificate of
such accountants stating that, in making the examination necessary for
their opinion, they obtained no knowledge, except as specifically
stated, of any Default;
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(c) promptly upon their becoming available, copies of all
registration statements and regular periodic reports, if any, that the
Company shall have filed with the Securities and Exchange Commission
(or any governmental agency substituted therefor) or any national
securities exchange;
(d) promptly after the Company knows or has reason to believe
that any Default has occurred, a notice of such Default describing the
same in reasonable detail and, together with such notice or as soon
thereafter as possible, a description of the action that the Company
has taken or proposes to take with respect thereto; and
(e) from time to time such other information regarding the
financial condition, operations, business or prospects of the Company
or any of its Subsidiaries as the Lender may reasonably request.
9.02 Litigation. The Company will promptly give to each Lender notice
of all legal or arbitral proceedings, and of all proceedings by or before any
governmental or regulatory authority or agency, and any material development in
respect of such legal or other proceedings, affecting the Company or any of its
Subsidiaries, except proceedings that, if adversely determined, would not
(either individually or in the aggregate) have a Material Adverse Effect.
9.03 Existence, Etc. The Company will, and will cause each of its
Subsidiaries to:
(a) preserve and maintain its legal existence and all of its
material rights, privileges, licenses and franchises;
(b) comply with the requirements of all applicable laws,
rules, regulations and orders of governmental or regulatory authorities
if failure to comply with such requirements could (either individually
or in the aggregate) have a Material Adverse Effect;
(c) pay and discharge all taxes, assessments and governmental
charges or levies imposed on it or on its income or profits or on any
of its Property prior to the date on which penalties attach thereto,
except for any such tax, assessment, charge or levy the payment of
which is being contested in good faith and by proper proceedings and
against which adequate reserves are being maintained;
(d) maintain all of its Properties used or useful in its
business in good working order and condition, ordinary wear and tear
excepted;
(e) keep adequate records and books of account, in which
complete entries will be made in accordance with generally accepted
accounting principles consistently applied; and
(f) permit representatives of the Lender, during normal
business hours, to examine, copy and make extracts from its books and
records, to inspect any of its Properties, and to discuss its business
and affairs with its officers, all to the extent reasonably requested
by the Lender.
9.04 Insurance. The Company will, and will cause each of its
Subsidiaries to, maintain insurance with financially sound and reputable
insurance companies, and with respect to Property and risks of a character
usually maintained by corporations engaged in the same or similar business
similarly situated, against loss, damage and liability of the kinds and in the
amounts customarily maintained by such corporations.
9.05 Prohibition of Fundamental Changes. Neither of the Obligors will
enter into any transaction of merger or consolidation or amalgamation, or
liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution). The Company will not, nor will it permit any of its Subsidiaries
to, convey, sell, lease, transfer or
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otherwise dispose of, in one transaction or a series of transactions, all or
substantially all of its business or Property, whether now owned or hereafter
acquired.
9.06 Governmental Approvals. Each of the Obligors agrees that it will
promptly obtain from time to time at its own expense all such governmental
licenses, authorizations, consents, permits and approvals as may be required for
it to (a) comply with its obligations, and preserve its rights under, each Basic
Document and (b) maintain the existence, priority and perfection of the Liens
purported to be created under the Security Documents.
9.07 Use of Proceeds. The Company will use the proceeds of the Loans
hereunder solely to purchase ASM Pacific Shares (in compliance with all
applicable legal and regulatory requirements); provided that the Lender shall
not have any responsibility as to the use of any of such proceeds.
9.08 Certain Obligations Regarding Collateral.
(a) The Lender agrees that it will not take any action to
realize against any of the Additional ASM Pacific Shares at any time
prior to a Market Capitalization Decline. At all times after any Market
Capitalization Decline, the Lender may take action, under and pursuant
to the Security Agreement, to realize on the Additional ASM Pacific
Shares.
(b) If at any time the ASM Pacific Collateral Value of the
Initial ASM Pacific Shares, together with any cash held by the Lender
subject to the Lien of the Security Agreement, is less than the
aggregate principal amount of the Loans (a "Margin Call Event"), the
Company shall, no later than the fourth Business Day thereafter,
either:
(i) prepay the Loans pursuant to Section 4.01(a)
hereof in an amount such that, after giving effect thereto,
the ASM Pacific Collateral Value of the Initial ASM Pacific
Shares, together with any cash held by the Lender subject to
the Lien of the Security Agreement, is at least equal to 110%
of the aggregate principal amount of the Loans; or
(ii) deposit cash with the Lender, subject to the
Lien of the Security Agreement, in an amount such that, after
giving effect thereto, the ASM Pacific Collateral Value of the
Initial ASM Pacific Shares, together with the aggregate amount
of cash held by the Lender subject to the Lien of the Security
Agreement, is at least equal to 110% of the aggregate
principal amount of the Loans; or
(iii) give a Company Put Notice with respect to
Common Stock with an aggregate Purchase Price such that, after
giving effect to the issuance of such Common Stock to the
Investor and the payment hereunder resulting therefrom as
provided in Section 4.01(b) hereof, the ASM Pacific Collateral
Value of the Initial ASM Pacific Shares, together with the
aggregate amount of any cash held by the Lender subject to the
Lien of the Security Agreement, is at least equal to 110% of
the aggregate principal amount of the Loans.
(c) No later than ten days after the Closing Date the Company
shall (i) deliver to the Lender the certificates representing the
Additional ASM Pacific Shares (to the extent not so delivered on the
Closing Date), together with duly executed stock powers relating
thereto, and (ii) execute and deliver to the Lender a supplement to the
Security Agreement describing such Additional ASM Pacific Shares and
confirming that they are subject to the Lien of the Security Agreement.
Section 10. Events of Default. If one or more of the following events
(herein called "Events of Default") shall occur and be continuing:
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(a) The Company shall:
(i) default in the payment of any principal of any
Loan when due (whether at stated maturity or at mandatory or
optional prepayment) and, if:
(A) the Company shall have delivered a
Company Put Notice or shall have received an Investor
Call Notice pursuant to which the issuance of Common
Stock by the Company would occur within five Trading
Days of the date on which an Event of Default would
otherwise have occurred under this Section 10(a)(i),
and
(B) the "payment" (as provided in Section
4.01(b) hereof) that would occur pursuant to such
Company Put Notice or such Investor Call Notice (as
the case may be) is equal to or greater than the
amount of such defaulted payment,
such default shall continue unremedied beyond the closing date
set forth on such Company Put Notice of such Investor Call
Notice (as the case may be); or
(ii) default in the payment of any interest on any
Loan, any fee or any other amount payable by it hereunder or
under any other Basic Document when due and such default shall
have continued unremedied for three or more Business Days and,
if:
(A) the Company shall have delivered a
Company Put Notice or shall have received an Investor
Call Notice pursuant to which the issuance of Common
Stock by the Company would occur within five Trading
Days of the date on which an Event of Default would
otherwise have occurred under this Section 10(a)(ii),
and
(B) the "payment" (as provided in Section
4.01(b) hereof) that would occur pursuant to such
Company Put Notice or such Investor Call Notice (as
the case may be) is equal to or greater than the
amount of such defaulted payment,
such default shall continue unremedied beyond the closing date
set forth on such Company Put Notice of such Investor Call
Notice (as the case may be); or
(b) The Company or any of its Subsidiaries shall default in
the payment when due of any principal of or interest on any of its
other Indebtedness aggregating U.S.$500,000 (or the equivalent in other
currencies) or more, or in the payment when due of any amount under any
Interest Rate Protection Agreement for a notional principal amount
exceeding U.S.$100,000 (or the equivalent in other currencies) absent a
valid dispute in which the Company in good faith believes such amounts
are not payable; or any event specified in any note, agreement,
indenture or other document evidencing or relating to any such
Indebtedness or any event specified in any Interest Rate Protection
Agreement shall occur if the effect of such event is to cause, or (with
the giving of any notice or the lapse of time or both) to permit the
holder or holders of such Indebtedness (or a trustee or agent on behalf
of such holder or holders) to cause, such Indebtedness to become due,
or to be prepaid in full (whether by redemption, purchase, offer to
purchase or otherwise), prior to its stated maturity or, in the case of
an Interest Rate Protection Agreement, to permit the payments owing
under such Interest Rate Protection Agreement to be liquidated; or
(c) Any representation, warranty or certification made or
deemed made herein or in any other Basic Document (or in any
modification or supplement hereto or thereto) by any Obligor, or any
certificate furnished to the Lender pursuant to the provisions hereof
or thereof, shall prove to have been false or misleading as of the time
made or furnished in any material respect; or
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(d) The Company shall default in the performance of any of its
obligations under Section 9 hereof; or any Obligor shall default in the
performance of any of its other obligations in this Agreement or any
other Basic Document and such default shall continue unremedied for a
period of 30 or more days after notice thereof to the Company by the
Lender; or
(e) The Company or any of its Subsidiaries shall admit in
writing its inability to, or be generally unable to, pay its debts as
such debts become due; or
(f) The Company or any of its Subsidiaries shall (i) apply for
or consent to the appointment of, or the taking of possession by, a
receiver, custodian, trustee, examiner or liquidator of itself or of
all or a substantial part of its Property, (ii) make a general
assignment for the benefit of its creditors, (iii) file a petition
seeking to take advantage of any other law relating to bankruptcy,
insolvency, reorganization, liquidation, dissolution, arrangement or
winding-up, or composition or readjustment of debts, or (iv) take any
corporate action for the purpose of effecting any of the foregoing; or
(g) A proceeding or case shall be commenced, without the
application or consent of the Company or any its Subsidiaries, in any
court of competent jurisdiction, seeking (i) its reorganization,
liquidation, dissolution, arrangement or winding-up, or the composition
or readjustment of its debts, (ii) the appointment of a receiver,
custodian, trustee, examiner, liquidator or the like of the Company or
such Subsidiary or of all or any substantial part of its Property, or
(iii) similar relief in respect of the Company or such Subsidiary under
any law relating to bankruptcy, insolvency, reorganization, winding-up,
or composition or adjustment of debts, and such proceeding or case
shall continue undismissed, or an order, judgment or decree approving
or ordering any of the foregoing shall be entered and continue unstayed
and in effect, for a period of 90 or more days; or
(h) A final judgment or judgments for the payment of money in
excess of U.S.$500,000 (or the equivalent in other currencies) in the
aggregate shall be rendered by one or more courts, administrative
tribunals or other bodies having jurisdiction against the Company or
any of its Subsidiaries and the same shall not be discharged (or
provision shall not be made for such discharge), or a stay of execution
thereof shall not be procured, within 30 days from the date of entry
thereof and the Company or such Subsidiary shall not, within said
period of 30 days, or such longer period during which execution of the
same shall have been stayed, appeal therefrom and cause the execution
thereof to be stayed during such appeal; or
(i) The Liens created by the Security Documents shall at any
time not constitute a valid and perfected Lien on the collateral
intended to be covered thereby in favor of the Lender, free and clear
of all other Liens, or, except for expiration in accordance with its
terms, any of the Security Documents shall for whatever reason be
terminated or cease to be in full force and effect, or the
enforceability thereof shall be contested by any Obligor; or
(j) The Company shall, or any of its Subsidiaries shall,
create, incur, assume or suffer to exist any Lien upon any of its
Property, whether now owned or hereafter acquired, except:
(i) Liens created pursuant to the Security Documents;
(ii) Liens in existence on the date hereof and listed
in Part B of Schedule I hereto;
(iii) Liens imposed by any governmental authority for
taxes, assessments or charges not yet due or that are being
contested in good faith and by appropriate proceedings if
adequate reserves with respect thereto are maintained on the
books of the Company or the affected Subsidiaries, as the case
may be, in accordance with GAAP;
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(iv) carriers', warehousemen's, mechanics',
materialmen's, repairmen's or other like Liens arising in the
ordinary course of business that are not overdue for a period
of more than 30 days or that are being contested in good faith
and by appropriate proceedings and Liens securing judgments
but only to the extent for an amount and for a period not
resulting in an Event of Default under Section 10(h) hereof;
(v) pledges or deposits under worker's compensation,
unemployment insurance and other social security legislation;
(vi) deposits to secure the performance of bids,
trade contracts (other than for Indebtedness), leases,
statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature incurred in the
ordinary course of business;
(vii) easements, rights-of-way, restrictions and
other similar encumbrances incurred in the ordinary course of
business and encumbrances consisting of zoning restrictions,
easements, licenses, restrictions on the use of Property or
minor imperfections in title thereto that, in the aggregate,
are not material in amount, and that do not in any case
materially detract from the value of the Property subject
thereto or interfere with the ordinary conduct of the business
of the Company or any of its Subsidiaries; and
(viii) Liens securing Indebtedness permitted to be
incurred under Sections 10(k)(iii)-(iv).
(k) The Company shall, or any of its Subsidiaries shall,
create, incur or suffer to exist any Indebtedness except:
(i) Indebtedness to the Lender hereunder;
(ii) Indebtedness outstanding on the date hereof and
listed in Part A of Schedule I hereto (including Indebtedness
incurred after the date hereof under the credit facilities
listed in Part A of said Schedule, up the maximum principal
amount set forth on such schedule);
(iii) additional Indebtedness of ASM America, Inc. in
an aggregate principal amount up to but not exceeding
U.S.$5,000,000 at any one time outstanding; and
(iv) additional Indebtedness of the Company and its
Subsidiaries in an aggregate principal amount at any one time
outstanding up to but not exceeding the sum of (x)
U.S.$2,000,000 and (y) the aggregate amount of payments of
principal of the Loans theretofore made.
THEREUPON: the Lender may, by notice to the Company, terminate the Commitment
and/or declare the principal amount then outstanding of, and the accrued
interest on, the Loans and all other amounts payable by the Obligors hereunder
and under the Notes (including, without limitation, any amounts payable under
Section 5.05 hereof) to be forthwith due and payable, whereupon such amounts
shall be immediately due and payable without presentment, demand, protest or
other formalities of any kind, all of which are hereby expressly waived by each
Obligor.
Section 11. Miscellaneous.
11.01 Waiver. No failure on the part of the Lender to exercise and no
delay in exercising, and no course of dealing with respect to, any right, power
or privilege under this Agreement or any Note shall operate as a waiver
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thereof, nor shall any single or partial exercise of any right, power or
privilege under this Agreement or any Note preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
11.02 Notices. All notices, requests and other communications provided
for herein and under the Security Documents (including, without limitation, any
modifications of, or waivers, requests or consents under, this Agreement) shall
be given or made in writing (including, without limitation, by facsimile)
delivered to the intended recipient at the "Address for Notices" specified below
its name on the signature pages hereof (below the name of the Company, in the
case of the Guarantor); or, as to any party, at such other address as shall be
designated by such party in a notice to each other party. Except as otherwise
provided in this Agreement, all such communications shall be deemed to have been
duly given when transmitted by facsimile or personally delivered or, in the case
of a mailed notice, upon receipt, in each case given or addressed as aforesaid.
11.03 Expenses. The Company agrees to pay or reimburse each of the
Lender for:
(a) all fees and expenses described in Section 10.2(a) of the
Financing Agreement;
(b) all reasonable out-of-pocket costs and expenses of the
Lender (including, without limitation, the reasonable fees and expenses
of legal counsel) in connection with (i) any Default and any
enforcement or collection proceedings resulting therefrom, including,
without limitation, all manner of participation in or other involvement
with (x) bankruptcy, insolvency, receivership, foreclosure, winding up
or liquidation proceedings, (y) judicial or regulatory proceedings and
(z) workout, restructuring or other negotiations or proceedings
(whether or not the workout, restructuring or transaction contemplated
thereby is consummated) and (ii) the enforcement of this Section 11.03;
and
(c) all transfer, stamp, documentary or other similar taxes,
assessments or charges levied by any governmental or revenue authority
in respect of this Agreement or any of the other Basic Documents or any
other document referred to herein or therein and all costs, expenses,
taxes, assessments and other charges incurred in connection with any
filing, registration, recording or perfection of any security interest
contemplated by any Basic Document or any other document referred to
therein.
11.04 Indemnification. The Company hereby agrees to indemnify the
Lender and its directors, officers, employees, attorneys and agents from, and
hold each of them harmless against, any and all losses, liabilities, claims,
damages or expenses incurred by any of them (including, without limitation, any
and all losses, liabilities, claims, damages or expenses incurred by the Lender,
whether or not the Lender is a party thereto) arising out of or by reason of any
investigation or litigation or other proceedings (including any threatened
investigation or litigation or other proceedings) relating to the Loans
hereunder or any actual or proposed use by the Company or any of its
Subsidiaries of the proceeds of any of the Loans hereunder, including, without
limitation, the reasonable fees and disbursements of counsel incurred in
connection with any such investigation or litigation or other proceedings (but
excluding any such losses, liabilities, claims, damages or expenses incurred by
reason of the gross negligence or willful misconduct of the Person to be
indemnified).
11.05 Amendments, Etc. Except as otherwise expressly provided in this
Agreement, any provision of this Agreement may be modified or supplemented only
by an instrument in writing signed by the Company and the Lender.
11.06 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
11.07 Assignments and Participations.
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(aviii) No Obligor may assign any of its rights or obligations
hereunder or under the Notes without the prior consent of the Lender.
(b) The Lender may assign to one or more Persons (other than Persons
that compete directly with the Company in one of its principal lines of
business) all or any portion of its Loan, its Note and its Commitment, provided
that the Lender shall act as agent on behalf of itself and all such Persons.
(c) The Lender may sell or agree to sell to one or more other Persons
(other than Persons that compete directly with the Company in one of its
principal lines of business) a participation in all or any part of any Loan or
the Commitment.
(d) In addition to the assignments and participations permitted under
the foregoing provisions of this Section 11.07, the Lender may (without notice
to the Company) (i) assign and pledge all or any portion of its Loans and its
Note to any Federal Reserve Bank as collateral security pursuant to Regulation A
and any Operating Circular issued by such Federal Reserve Bank and (ii) assign
all or any portion of its rights under this Agreement and its Loans and its Note
to an affiliate. No such assignment shall release the Lender from its
obligations hereunder.
(e) A Lender may furnish any information concerning the Company or any
of its Subsidiaries in the possession of the Lender from time to time to
assignees and participants (including prospective assignees and participants).
11.08 Survival. The obligations of the Company under Sections 5.01,
5.04, 5.05 and 11.03 hereof, and the obligations of the Guarantor under Section
6.03 hereof, shall survive the repayment of the Loans and the termination of the
Commitment. In addition, each representation and warranty made, or deemed to be
made by a notice of any Loan, herein or pursuant hereto shall survive the making
of such representation and warranty, and the Lender shall not be deemed to have
waived, by reason of making any Loan, any Default that may arise by reason of
such representation or warranty proving to have been false or misleading,
notwithstanding that the Lender may have had notice or knowledge or reason to
believe that such representation or warranty was false or misleading at the time
such Loan was made.
11.09 Captions. The table of contents and captions and section headings
appearing herein are included solely for convenience of reference and are not
intended to affect the interpretation of any provision of this Agreement.
11.10 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
11.11. Judgment Currency. This is an international loan transaction in
which the specification of Dollars and payment in New York City is of the
essence, and the obligations of the Obligors under this Agreement to make
payment to (or for the account of) the Lender in Dollars shall not be discharged
or satisfied by any tender or recovery pursuant to any judgment expressed in or
converted into any other currency or in another place except to the extent that
such tender or recovery results in the effective receipt by the Lender in New
York City of the full amount of Dollars payable to the Lender under this
Agreement. If for the purpose of obtaining judgment in any court it is necessary
to convert a sum due hereunder in Dollars into another currency (in this Section
11.11 called the "judgment currency"), the rate of exchange that shall be
applied shall be that at which in accordance with normal banking procedures the
Lender could purchase such Dollars at its New York City office with the judgment
currency on the Business Day next preceding the day on which such judgment is
rendered. The obligation of the Obligors in respect of any such sum due from it
to the Lender hereunder or under any Basic Document shall, notwithstanding the
rate of exchange actually applied in rendering such judgment, be discharged only
to the extent that on the Business Day following receipt by the Lender of any
sum adjudged to be due hereunder in the judgment currency the Lender may in
accordance with normal banking procedures purchase and transfer Dollars to New
York
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City with the amount of the judgment currency so adjudged to be due; and each of
the Obligors hereby, as a separate obligation and notwithstanding any such
judgment, agrees to indemnify the Lender against, and to pay the Lender on
demand, in Dollars, the amount (if any) by which the sum originally due to the
Lender in Dollars hereunder exceeds the amount of the Dollars so purchased and
transferred.
11.12 Governing Law. This Agreement and the Notes shall be governed by,
and construed in accordance with, the law of the State of New York, United
States of America.
11.13 Jurisdiction; Service of Process; Venue.
(a) Each Obligor hereby agrees that any suit, action or proceeding with
respect to this Agreement, any Note, any other Basic Document or any judgment
entered by any court in respect of any thereof may be brought in the Supreme
Court of the State of New York, County of New York or in the United States
District Court for the Southern District of New York, as the party commencing
such suit, action or proceeding may elect in its sole discretion; and each
Obligor hereby irrevocably submits to the jurisdiction of such courts for the
purpose of any suit, action, proceeding or judgment.
(b) Each Obligor hereby agrees that service of all writs, process and
summonses in any such suit, action or proceeding brought in the State of New
York may be made upon Corporation Service Company, presently located at Xxx
Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, XX 00000 (the "Process Agent"), and
each Obligor hereby confirms and agrees that the Process Agent has been duly and
irrevocably appointed as its agent and true and lawful attorney-in-fact in its
name, place and stead to accept such service of any and all such writs, process
and summonses, and agrees that the failure of the Process Agent to give any
notice of any such service of process to such Obligor shall not impair or affect
the validity of such service or of any judgment based thereon. Each Obligor
hereby further irrevocably consents to the service of process in any suit,
action or proceeding in said courts by the mailing thereof by the Lender by
registered or certified mail, postage prepaid, at its address set forth beneath
its signature hereto (below the signature of the Company in the case of the
Guarantor).
(c) Nothing herein shall in any way be deemed to limit the ability of
the Lender to serve any such writs, process or summonses in any other manner
permitted by applicable law or to obtain jurisdiction over any Obligor in such
other jurisdictions, and in such manner, as may be permitted by applicable law.
(d) Each Obligor hereby irrevocably waives any objection that it may
now or hereafter have to the laying of the venue of any suit, action or
proceeding arising out of or relating to this Agreement, the Notes or any other
Basic Document brought in the Supreme Court of the State of New York, County of
New York or in the United States District Court for the Southern District of New
York, and hereby further irrevocably waives any claim that any such suit, action
or proceeding brought in any such court has been brought in an inconvenient
forum.
(e) Each Obligor irrevocably waives, to the fullest extent permitted by
applicable law, any claim that any action or proceeding commenced by the Lender
relating in any way to this Agreement should be dismissed or stayed by reason,
or pending the resolution, of any action or proceeding commenced by any Obligor
relating in any way to this Agreement whether or not commenced earlier. To the
fullest extent permitted by applicable law, the Obligors shall take all measures
necessary for any such action or proceeding commenced by the Lender to proceed
to judgment prior to the entry of judgment in any such action or proceeding
commenced by any Obligor.
11.14. No Immunity. To the extent that any Obligor may be or become
entitled, in any jurisdiction in which judicial proceedings may at any time be
commenced with respect to this Agreement or any other Basic Document, to claim
for itself or its Property any immunity from suit, court jurisdiction,
attachment prior to judgment, attachment in aid of execution of a judgment,
execution of a judgment or from any other legal process or remedy relating to
its obligations under this Agreement or any other Basic Document, and to the
extent that in any such jurisdiction there may be attributed such an immunity
(whether or not claimed), each of the Obligors hereby irrevocably agrees not to
claim and hereby irrevocably waives such immunity to the fullest extent
permitted by the
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laws of such jurisdiction and agrees that the foregoing waiver shall have the
fullest extent permitted under the Foreign Sovereign Immunities Act of 1976 of
the United States of America and is intended to be irrevocable for purposes of
such Act.
11.15 Waiver of Jury Trial. EACH OF THE OBLIGORS AND THE LENDER HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
11.16 Use of English Language. This Agreement has been negotiated and
executed in the English language. All certificates, reports, notices and other
documents and communications given or delivered pursuant to this Agreement shall
be in the English language, or accompanied by a certified English translation
thereof. Except in the case of laws of, or official communications of, the
Netherlands, in the case of any document originally issued in a language other
than English, the English language version of any such document shall for
purposes of this Agreement, and absent manifest error, control the meaning of
the matters set forth therein.
11.17 Public Information. The Company hereby agrees to furnish to the
Investor copies of each of the Company's SEC filings, press releases and other
publicly-disseminated information, promptly after the release of such
information but in no event later than 30 days thereafter.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
ASM INTERNATIONAL N.V.
By:
Title:
Address for Notices:
Xxx Xxx Xxxxxxxx 00
0000 Xxxxxxxxx
The Netherlands
Attention: Rinse de Jong
Facsimile No.:(00) 00-000-0000
Telephone No.: (00) 00-000-0000
ADVANCED SEMICONDUCTOR MATERIALS (NETHERLANDS
ANTILLES) N.V.
By:
Title:
CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK AGENCY
By:
Title:
Lending Office:
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Address for Notices:
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx or Xxxx Xxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
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With a copy to:
Canadian Imperial Bank of Commerce
Two Places West
0000 Xxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx
Attn: Xxx Xxxxxxx
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SCHEDULE I
Material Agreements and Liens
[See Sections 8.12 and 10(j)(ii)]
Part A - Material Agreements
Part B - Liens
